Before I got involved in employment law, I was naive enough to believe that discrimination was largely a thing of the past.  I was flat wrong.  Even with all the hype, sex and race discrimination are still out there.  They are hidden better these days, but these types of discrimination are still there.

The most common type of discrimination, though, is not race or sex, but age.  As Alan Farnham reported on ABCNews in his article this week “Want Wrinkles With That?  Texas Roadhouse Sued for Age Discrimination,”  the EEOC percieves age discrimination as a huge problem arising from the recent recession.  And, we’re not talking about the 65 and older crowd here.  Age discrimination happens to 40 year olds, too, as was the case with Texas Roadhouse.  They want young chipper people working bar and acting as hostesses.    Plastic surgeons want young beautiful people working in their offices to make all the clients feel like they need surgery.  Setting that aside, let’s look at the less obvious.  Older people are less familiar with the new and inventive ways of doing business.  There is always new software, a new device, or a new something that causes businesses to unintentionally avoid older workers – simply because they may not be familiar with the latest and greatest.

Because it is easy to think you are not discrimnating by choosing the 25 year old over the 40 year old, you may not even be conscious of your decision.  Of course, you are thinking – if it isn’t intentional, how can I be liable?

Intent is a funny thing in the law.  Because a jury can’t crawl into your skull and see what you are thinking, they have to guess your intent from your actions.  If you pick the 25 year old over the identically qualified 40 year old and your office is already full of 25 year olds – a jury might think you are discriminating.   If the 40 year old is slightly better qualified but you pick the 25 year old because you connected better with that person in the interview – a jury might think discrimination.  Again, if you want a certain image for your company and the less stylish 40 year old isn’t part of that image – good luck winning in front of the 3 older people on your jury!

So, stop for a minute, consider whether you are unconsciously discriminating, and then think about what a jury might think if they looked at your decisions!

Who, What, Why . . .

Who does it apply to: Employee Polygraph Protection Act of 1988 applies to virtually every employer who might think of giving a polygraph test as a prerequisite to hiring or to an existing employee.  What does the law prohibit: Employers cannot “require, request, suggest, or cause” an employee to take a polygraph or lie-detector test.

What about a test by someone else, like the police: Employers are also prohibited from “using, accepting, or inquiring about” the results of a test taken by someone else.

How can an employer treat an employee who refuses to “volunteer” for a test: This is covered too, employers cannot discriminate against or refuse promotion, etc., to any employee who refuses a test.

Can I get around the general rule: With all these prohibitions, you might wonder why I even wrote on this topic.  Alas, there are five exceptions:

• You are investigating a crime in your business and meet all of the requirements;

• You are an FBI contractor;

• You are in the business of providing security services for sensitive facilities or armored cars;

• You manufacture, dispense, or distribute controlled substances; or

• You are a public employer – like the government.

What are the requirements for the crime exception: (1)  the employer is investigating a crime that involves monetary loss or injury to the employer’s business, such as theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage; (2) the employee had access to the property that is the subject of the investigation; (3) the employer has a reasonable suspicion that the employee was involved in the incident under investigation; and (4) before the test, the employer executes a statement to the employee that specifies the scope of the investigation and the specific loss being investigated, states that the employee had access to the property, and describes the reasonable suspicion and basis for testing particular employees.

Are there requirements for the test: If an employer meets one of the exceptions, he or she can’t just roll up their sleeves and pull out their handy-dandy “deceptograph.”  There are a myriad of requirements for the test itself.  Among them is a requirement that you use a licensed polygraph examiner.  In addition to the polygraph examiner, an employer should really consult with their lawyer before testing to make sure they meet all the requirements which are simply too long and boring to list here.

Common Situations:

Police test: SuperFast-Mart is robbed right as it is about to transfer its receipts from a three-day weekend to its Armored-car service.  Police investigators suspect an employee helped plan the robbery and is in for a cut.  They interview Suzy Quick who protests her innocence and offers to take a lie detector test for police.  After the test, the police investigator makes an unsolicited call to SuperFast’s owner to let him know Suzy has failed the test miserably.  The owner then decides to let Suzy go based on a lack of trust for Suzy as an employee.  Is SuperFast potentially liable to Suzy for violating the EPPA?  It depends.  If the unsolicited information from the police was a factor in SuperFast’s decision, yes.  Even though Suzy is a criminal, the law says SuperFast could be liable.

Record voice and test later: The owner of Bob’s VCR Shop decides that he has a way to sneak around the EPPA and its exceptions.  He’ll video record a meeting with the employee and have it analyzed later by a polygraph examiner.  A polygraph examiner would tell Bob he’s out of luck because polygraph relies upon blood pressure, pulse, respiration, and skin conductivity results which means the employee has to be hooked up to a machine.  In the eyes of the law, Bob will also be unsuccessful.  Employers cannot wire around the test this way.

Paper tests: Monolithic, Inc. skips polygraph tests and goes straight to a “pencil and paper” honesty test devised by a psychologist.  A prospective employee refuses to take the test and then sues under the EPPA.  The employee is out of luck.  The EPPA is only applicable to tests administered by mechanical or electronic means.  Many paranoid employers have, in fact, switched to this type of test and claim that the results are better than a polygraph examination.

What should I do:

Good: Post the required notice required under the EPPA and contact your employment lawyer if you meet an exception and ever really want to take a polygraph examination of an employee.

Better: Post notice and use a “pencil and paper” honesty test as an alternative to a polygraph.  Unless you are in one of the businesses where polygraphs are regularly accepted, the risks of trying to use a polygraph are too high.

Best: “Good” and “Better” get it done this month.  There is no best.

Last week, Katie Morrell offered a piece entitled “The 5 Worst Things You Can Do in an Interview” on AMEX’s Open Forum small business site.  Of course, #1 was “getting too personal” in which she explained that it is illegal to ask about race, sex, marital status, etc.  This myth has persisted too long.  It is not illegal to ask any question in an interview!  Want to know if they are a millionaire trust fund baby?  Go for it.  Want to know if they they are a trans-sexual.  Fire at will.  I swear that the police will not come in after the interview to take you off to prison.

I hear you loud and clear:  “This flies in the face of everything I’ve ever heard!”  Well, only sort of.  While it is not illegal, it can still get you in trouble.  See, like most things in life, it is really about managing risk and not so much about legality.  It may be a subtle distinction, but I think it is important for employers to understand.  If you ask an inteviewee if they are pregnant and you don’t give them the job (or even if you do give them the job) they might equate that with the reason you don’t hire them or a reason you deny them a promotion later.  If they do, the person might use that to boot strap a claim for discrimination based on pregnancy status.

In the end, you treat an inteviewee just like an employee.  You should avoid topics that might offend with a person who might bring a claim against you.  Of course, you hardly know interviewees, so understanding what questions are taboo with that person will be more difficult.  Manage the risk based on the circumstances and understand what is and is not really protected.

Last week someone told me that you can’t ask if the person is independently wealthy.  Since when is that protected?  Uhhh, no.  When someone tells you it’s illegal to do something, be sure to understand why and how.  The topics you generally should avoid to minimize risk are the same things you have to watch out for with your existing employees –  characteristics that are protected against discrimination such as: age, sex, disability, military status, origin, color, etc.

See, family money isn’t on the list.

Compensation Cafe offered up a “Beginner’s Guide to Job Descriptions” a few days ago.  Aimed at department managers, the post does a fair job of discussing the mechanics of writing a job description.  At the end though, the post defers to the HR department to add in any finishing touches.  So what happens if you are writing the job description AND the HR department for the whole company, too?  Maybe some mid-level manager at Microsoft would appreciate the post, but owners of a business trying to man all posts will be left without the most important part.  Why – O – Why should I even be writing a job description?

There are some business reasons to write a job description: clarify what employees are to do, delineate between different jobs, show prospective employees during an interview, etc.  But, job descriptions are not required by law.  Whew, you think, “I’m done”.  “Forget those other reasons, I’ve got a business to run.”

Of course, as is so often the case with the law, that isn’t the whole story.  Job descriptions can be helpful with legal issues under the FLSA (Fair Labor Standards Act) and ADA (Americans with Disabilities Act).

Under the FLSA, employees can be exempt from overtime (see Exemptions from Overtime – June 26, 2011) if they meet certain requirements.  One reason to write job descriptions is to think about who you might be able to exempt and write job descriptions or change jobs in a way that just so happens.  Think of how much moohlah you can save without having to pay as much OT?  That is one of the real reasons for writing a job description and it kind of helps to know that when you set down to write it!

The same is true under the ADA.  Say Joani, your private company pilot, comes in to say she has to start wearing contacts.  HOLY COW, you think, I’M NOT CLIMBING ON A PLANE WITH A PILOT THAT CAN’T SEE!  WHAT IF SHE LOSES ONE!!!!!!  If you had a job description for the pilot position stating they have to have uncorrected 20/20 vision you might be able to more easily resolve the matter.  Now, you just look like the guy who is trying to come up with an excuse to fire his disabled pilot!  (Note, the answer under the ADA is not quite that simple, but a job description would certainly help your cause.)

 

 

The Evil HR Lady dropped a post recently about an employee who was upset because she just discovered a co-worker was earning more than her with less experience.  Lucas explained in “Dear Abby” fashion why the employee ought to let it go:  The economy is bad.  Lots of people want your job.  Suck it up.  It’s less than $20 a week.  I get it.  She’s right.  If you complain they might let you go, but does the employer have a right to discipline the employees for even talking about their wages? I mean – salaries are sacred secrets – Right?

You ought to know me well enough by now to realize that is not the end of the story.  It is a common myth.  I see it in employee handbooks that I review all of the time.  It is time to wake up.  Elvis has left the building.  Employees can absolutely talk about their wages and complain about them to you and anyone else who will listen.  Stand in the way and you’ll be staring down the barrel of an NLRB (National Labor Relations Board) shotgun.  Yeah, right Kelsheimer, the NLRB is just for unions.  Well, complaining about your wages is considered pre-union activity – even if it amounts to nothing.  With the information all over the internet, employees now know where to complain.  So, now you can’t say I didn’t warn you.

Following in the footsteps of Steven D. Levitt, economist and eccentric author of Freakonomics, Daniel Hamermesh has reduced the effect of being “ugly” to its monetary cost:  $230,000.00.   That is supposedly the lifetime earning reduction an ugly person suffers.  In the New York Times on Sunday, he hypothesizes that ugly people should have their own “protected class” – like religion, sex, race, color, etc.  Seriously?

I know Mr. Hamermesh is just drumming up publicity for his new book (and being quite successful I might add), but he clearly ain’t an employment lawyer.  There are at least two HUGE problems with making ugly a protected class.  First, it is subjective.  Beauty is in the eye of the beholder, right?  How are we ever going to set a standard on what ugly is?  Religion is concrete – methodist, baptist, catholic.  Sex is too (for the most part), but there is no way to objectively quantify ugly.  What is more, the discrimination against ugly people is probably unintentional.  We all just gravitate to better looking people.  Under an ugliness standard, do “pretty good looking” models have a right to complain against an agency that won’t take them because they only take supermodels?

The second big problem is the “slippery slope” created by making “ugly” a protected class.  What is next:  Smokers?  Vegans? Vertically Challenged?  Stupidity?  At some point, we ought to have a right to choose!   Of course, this opens a rather large can of worms.  Some of those reading this are thinking – damn right – I ought to be able to choose not to be around _________, which are protected classes.

Even though I might benefit from the protection, I just don’t see how to make it work.  Society has decided as a rule that religion, sex, age, disability, color, ethinicity, etc, deserve protection, but I don’t think ugly is quite ready for the big leagues.

P.S. “Ain’t” is in the dictionary, though it is considered a “informal” word.  Contractions are not something I use in my professional lexicon, but it seemed appropriate for this informal piece.  Thanks to my friends for their concern.

Who, What, Why . . .

Who does it apply to: Any employer who monitors employee emails, issues employees a cell phone, or might ever want to search an employee’s workspace. Even if you don’t think you are the snooping type, there may come a day where you think an employee is stealing, on drugs, or misusing company facilities in ways you never imagined and you will suddenly care.

What privacy rights do citizens have in general: The Fourth Amendment protects private citizens from government intrusions and there are legal claims available for citizens to bring against other citizens who intrude on their privacy, but these are more limited than you might think.

How do privacy rights translate into the workplace: Simply put, they don’t effectively translate. Private employers are not subject to the Fourth Amendment, and they can make employees surrender most of their other privacy rights as a condition of employment.

Where can employers conduct physical searches: Unless the employer creates an expectation of privacy (intentionally or unintentionally) an employer can search anywhere on its premises.

Can an employer look at employee email: It depends on the type of email. An employer can search and read employees work email that is provided through a company server. A private webmail account that the employee looks at on the company computer is a different story. Employees have an expectation of privacy in a separate email account for which the employee holds the sole password. Unless the employee surrenders the password in advance and uses the webmail account for work purposes, employers should steer clear.

What about work phone calls: An employer might think that they are automatically entitled to listen to employee calls. After all, the employer owns the phone. Unfortunately, that is not accurate. Employers must obtain advance consent from their employees to listen in on calls, and even so, employers must hang up on any call as soon as they determine it is personal.

Are cell phones the same: It is virtually impossible for an employer to listen in on a cell phone call as it occurs. There simply isn’t technology to support it. That leaves voicemails, text messages, photos, and video. For these items, it is still necessary for the employer to obtain consent, even if the employer pays for and issues the cell phone.

What about video cameras: Employers may place video cameras in their facilities, however, a little common sense is necessary. You cannot place a video camera in a restroom or locker room because employees do have a right to expect some level of privacy there. Also, if you are going to use video, you need to let the employees know so they don’t expect privacy in that environment.

When are polygraphs acceptable: Generally polygraphs are not allowed under the law, but there are a few exceptions which will be discussed in the EH piece next month.

Can I monitor the internet: Employers can monitor employee internet usage at work. That said, employers must be careful of monitoring employees on social media sites. Employers cannot fire employees for complaining about supervisors, wages, or working conditions on the internet. This is considered pre-union activity and protected under law.

What about employee health information: Employers must protect employee private health information under the federal Health Insurance Portability and Accountability Act. This topic will be discussed in more detail in a later EH piece.

Common Situations:

Employee lockers: Acme Lock and Safe provides lockers for its employees to store their personal items, but allows employees to use their own personal lock. Acme has no written policy regarding privacy in the workplace. One day, the company suspects that someone is stealing locks. They cut all the locks off employee lockers and search. Mia stores her purse in her locker and the company rifles through it finding nothing. Can Mia sue Acme for violation of her privacy? Yes. Even though Acme owns the lockers, it permitted the employee to develop a sense of privacy by using her own lock without maintaining a key.

Conceal and carry: An employer institutes a policy against employee’s bringing guns into the workplace. Joe does not believe this policy applies to him because he has a conceal and carry license and his employer does not have the state required notice to prevent him from carrying into the office. The employer discovers Joe is still bringing a weapon into the office and fires him. Has the employer violated his rights? Though firing Joe without a chance to correct his misapprehension might be a bit severe, it does not violate his rights. An employer may set policies for employees about bringing weapons in the workplace without following the state notice requirements, though it is good to clarify this point in the policy.

Privacy in the parking lot: An employer believes that one of its employees is sneaking out secret company plans in the employee’s car. The employer has a policy regarding searches on employer property and demands the employee provide access to his car so that the employer may inspect it. Does the employer have the right to examine an employee’s car? It depends. If the employer owns or leases the parking lot as part of its space, it can extend its search policy to the car. If not, the demand is inappropriate.

What Should I do:

Good: Have a policy putting employees on notice of what privacy rights, if any, you allow in your place of employment with respect to personal space, internet usage, email, and phones.

Better: In addition to a policy, employers should have employees consent to searches of personal space, listening in on business calls in the office, and consent to provide access to all types of data (voicemails, texts, internet site usage, photos, and video) on company issued or reimbursed cell phones.

Best: Maintain a policy and obtain advance consents as noted above, but layer over that with consent to be signed by the employee at the time of the search doubling up protection against an argument that you forced the search.

Believe it or not, my clients don’t always come to me for advice on how to get out of a crack of some kind.  Occasionally, they just need a sounding board.  Jessica Stillman’s recent post Are Your Bad Co-Workers Killing You? reminded me of a client lunch I had several weeks ago.  The post talks about how employees should flee a bad work environment because it is caustic to your health.  My client was experiencing a similar problem surrounded around one particular employee we’ll call “Bob” to protect the identity of the guilty.

Bob was a model worker.  He was efficient, hard working, and a total a**hole.   My client was conflicted about how to deal with Bob.  From a management standpoint, he could use more like Bob.  Unfortunately, Bob was also a rude and mean spirited person who would throw Bambi under the bus if he thought it might help him.  Bob was making life for my client’s other 10 employees absolutely miserable.

Having no “official” reason to get rid of Bob, my client was perplexed at the thought of letting him go and afraid of some kind of wrongful termination claim if he fired an employee with otherwise good performance evaluations.   Without hesitation, I told my client to go back to the office and cut that cancer right out of his life.

I get to say this about once a week:  “You can fire an employee for good reason, bad reason, or no reason.”  Don’t be afraid to get rid of an employee who creates problems in your workplace just because they are good on paper.  After they are gone, document the issue (perhaps throwing in a couple of employee statements to that effect) and close the file . . .

“Private eyes, they’re watching you, they’re watching your every move . . .”

I don’t even particularly like Hall and Oates, but the song popped into my head as soon as I started reading Jennifer Preston’s article last week in the New York Times about a new investigative tool for employers.  Social Intelligence is the name of a new company offering a niche service for employers in pre-hire screening.  The company scours the internet for information about prospective employees while purportedly blocking information that employers want to avoid based on an employer’s defined search characteristics.

Why wouldn’t an employer just run its own Google search for free?  Good thought – potentially bad result.  If an employer runs a search on Google and starts randomly looking at the results, they might discover a potential employee was pregnant or that the person has a particular religious affiliation.  The prospective employer could then subconsciously discriminate against the candidate.  Social Intelligence says they can avoid that risk by sanitizing the results so that employers are only provided information that would not be perceived as discriminatory.

The company may be on to something.  Employers have been beaten about the head by their lawyers not to ask certain questions in an interview.  I often have clients ask whether they can inquire about a particular subject in an inteview.  To their surprise I tell them they can ask anything they want – as long as they consider the consequences.  If you ask someone if they are pregnant and you don’t give them the job, or even if you do, they might later claim that you discriminated against them.  It is about assessing the risk of the questions.  If you are prepared to accept the risk, you can ask the question.

If Social Intelligence can help employers manage that risk where they otherwise could not, it is a good value to business owners.

Courtesy of McKinney PD

Danny Gallagher reported in the McKinney Courier-Gazette a couple of days ago that a McDonalds Restaurant was robbed at gunpoint.  Surveillance photos released by the police show the assailant physically accosting the manager.  Go figure – it got me thinking about how a robbery affects a business from the employment law standpoint.

So, should there be a policy in the old employee handbook?

Maybe not every business, but places that have cash that tempts a thief should consider having a policy.  That policy should outline that the lives of employees and their personal safety is far more important than attempting to protect the company’s money from a would-be thief.  Employees should be warned not to attempt to take any action against a thief and that they will be disciplined or terminated if they do take action.

Of course, some of you are now thinking that I have lost my mind.  Why in the world should you fire an employee who decides to play Batman and get a little vigilante justice?  Fair question.  Answer: liability.  If your employee is hurt or killed in the process of attempting to protect a few sheckles in the cash register, you are going to wish the robber had gotten away with it when you start paying me to defend the personal injury suit by the employee!

What is worse, if your employee hurts or kills the assailant, you might be sued for causing the injury.  Would the suit be successful?  Maybe not, but remember my ever repeated maxim: “Anybody can sue anyone for anything!”  The cost to dispose of the suit would undoubtedly be more than the money you recovered from the thief.